Sunday, March 04, 2012

Nifong, Cline, and Durham's Legal Culture

Durham County is the sixth most populous county in the nation’s tenth most populous state. That a county of this size and significance—we’re not talking about Divide County, North Dakota here—has seen its chief prosecutor removed from office for ethical improprieties twice in the past half-decade is appalling. In an ideal world, this development would trigger a grassroots movement demanding a more ethical county prosecutor’s office. But, of course, we don’t live in an ideal world, and there’s little reason to anticipate such a development in Durham.

There were clear differences between the paths taken by Mike Nifong and Tracey Cline to their forced removal from office. Nifong was fundamentally corrupt, unethical to the core. An effective, if sometimes overly blatant, racial demagogue, he was motivated not by ideology but by pure personal advancement. If he had served as Durham DA in the 1950s, it’s easy to imagine him trying to frame innocent black students to appeal to racist sentiments among his white-majority electorate.

As to the performance of his duties: Nifong’s handling of the Mangum allegations could be used as a test for a legal ethics class, since he seemed intent on violating as many distinct ethical procedures as he possibly could in a single case. In this respect, his previous experience was particularly dangerous: he knew the rules well enough to know exactly what procedures needed to be overridden, and he had enough support on the bench (chiefly from Judge Ronald Stephens) to almost get away with it. A caricature of a small-town bully (a trait he ably demonstrated during his tenure at traffic court), he expected that he could live by his own rules, and defied anyone to try and stop him.

The great unknown of Nifong’s career is whether this type of misconduct led to him helping to convict any innocent people during his tenure as an ADA. His supporters never seemed interested in exploring this question.

Ideas did seem to matter to Cline. She made feints to anti-racism (with her seemingly baseless allegation of racism against an earlier employer—good enough to gain Victoria Peterson’s loyalty) and feminism (as ADA, she developed the deeply dangerous policy of allowing sex crimes cases to go to trial, regardless of the evidence, as long as the prosecutor believed the accuser). But as DA, Cline’s seemed mostly animated by an extreme version of victims’ rights, to the extent that she saw her office not as the “minister of justice” but as a victims’ advocate.

In Saturday’s N&O, Barry Saunders wrote that he had been a victim of a crime more than a decade ago, “when Cline as assistant DA, represented ‘me, the people’ after some night-skulking skunk broke into my house while my then 10-year-old son and I were in bed. Cline personified professionalism and commitment—even though she did get angry at me for showing sympathy toward the defendant from the witness stand and possibly causing the jury to go easy on him.”

But Cline was not supposed to have “represented” Saunders, or any victim of crime—as a district attorney, she was supposed to have represented the people. Did her inability to recognize this distinction account for her overly emotional (delusional?) response to Judge Hudson, with her claims that his decisions were “raping” the victims of crime? She certainly wasn’t helped by her obvious intellectual limitations. For a DA of a county Durham’s size to file motion after motion riddled with spelling and grammatical errors was simply embarrassing.

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Nifong and Cline did share one important characteristic: a willingness to lie, including in court. Nifong prevaricated so often in the lacrosse case that by the time things came crashing down upon him (in the week of the Dec. 15, 2006 hearing), he couldn’t keep his story straight about why he didn’t turn over all the DNA evidence. In the end, his lying to Judge Smith earned him a night in jail for criminal contempt, while Cline’s penchant for tall tales in the courtroom earned her a public rebuke from Judge Hardin.

Cline, moreover, almost certainly obtained her position through prevarication. Amidst the 2008 primary campaign, as the N&O delicately put it, “Cline maintain[ed] that she had no involvement in the lacrosse case, although defense lawyers for the exonerated players and testimony from State Bar disciplinary proceedings against Nifong challenge that.”

We likely will never know the full extent of Cline’s involvement in the lacrosse case—she won’t even grant the N&O permission to release a tape of the off-the-record 2007 discussion she had on the case. Nifong, meanwhile, has every incentive to maintain the fiction, lest Cline appear as a witness against him in the civil suits. That Cline’s story strains credulity puts it mildly: to believe her requires accepting that after recommending the constitutionally-suspect NTO against all white lacrosse players, solely on the basis of their group identity, she had no subsequent involvement in the case—even though she was the office expert in sexual assault cases, and even though she worked alongside Nifong throughout the period (when the case was the talk of Durham), and even though she would have served as second chair during the trial.

That move sent quite a message about Cline’s commitment to integrity, but it was sadly consistent with the values of the office she was about to take over. A few months ago, a DIW commenter who said he had tried a few cases against Cline offered the following persuasive insight: “The culture of the Durham DA's office, as shown time and time again, is to win cases at all costs. Nifong and Cline built their careers in that office, and they both treat criminal cases as personal wars.”

In New York, both the Times and the tabloids would have crucified a sitting judge who repeatedly placed the prestige of her office behind unethical prosecutors. In Durham, Morey’s conduct passed without editorial notice, and while such an approach could be expected from the hopelessly biased Independent, what can excuse the silence of the N&O editorial board and that of the post-Ashley H-S? Morey, it seems, represents The Durham Way, a fact so obvious that it appears it doesn’t even deserve a mention.

In a February interview with the Independent, Morey lamented, “Durham needs and deserves a better reputation." "I'm tired,” continued the Nifong/Cline ethics witness, “of going to meetings in other cities where people are saying, ‘There's always something going on in Durham.’”

With a sitting judge repeatedly testifying on behalf of unethical prosecutors, how could anyone in other cities think there's something wrong with what's going on in Durham?

One has to ask why it is that ethical lawyers (there have to be some) in Durham have not stood as one to demand something be done about the culture of lies that seemingly exists in the prosecutor's office in Durham.

A prestigious law school( and I am not referrring to Tracey Cline's alma mater) exists in the county served by that prosecutors office and yet little has been heard from the august faculty of said institution questioning the ethical lapses that are rife within said office.To my mind, it speaks volumes about the ethical training that its graduates have received.

Your article is very accurate but your criticisms of the Durham courthouse are understated! As a lawyer who has worked in Durham over the past 23 years I am more than frustrated at the incredible incompetence and outright ignorance displayed in both the district attorneys office and by the district court judges, only the clerks office run by Archie Smith and his staff display a competence expected of our legal institutions. For example, I defended a man charged with "soliciting prostitution". The state's evidence consisted soley of 1. An officer's observation of a woman leaning in the window of my client's car. 2. The woman getting into my clients car. 3. Does background check and learns the woman has been convicted of prostitution in the past. Despite both my client and the woman giving statements that he was just giving the woman a ride home, my client is charged with soliciting prostitution! At trial the judge convicts my client saying "we don't have to know what was said to know what was going on"!! The ignorance of the law and failure to require the state to prove elements of a crime by a sitting judge is shameful. That a judge would make that statement that we don't need to know what was said, when a defendant is charged with "soliciting" is mind boggling. Since the departure of judge Ken Titus and his contemporaries on the bench the Durham District Court Judges Office has hit an incredible low. It is remarkable because on the other hand the Superior Court Judges from our district are probably some of the finest in the state. There is no quick fix to Durham's problems. Attorneys from other counties laugh at the incompetence on the District Court bench and cringe if they have to come here. Anyway, the citizens of Durham deserve better. We have got to stop choosing people to serve as judges because of their race or sex or political connections. Brian Aus was by far the most experience and accomplished lawyer to run for district court judge in the last elections, yet he was not elected. There is no way if you put his resume down, and remove the fact he is white and male, and compare it to the resume of his opponent and remove the fact she was female and black, that Brian Aus is not selected to serve as judge. The color of a person's skin or sex should never be a consideration in the selection of a judge. Judge Orlando Hudson is one of the finest judge's in North Carolina. He is a strong defender of the consitution and has a great legal mind. The color of his skin is inconsequential as to his competence as a jurist. We, the citizens of Durham, need to put a persons accompishments, experience and proven legal acquity first in determing our judges. I expect judge Stanback will do much to fix the problems in the District Attorneys office, he is a great choice for Durham. If he chooses not to run in the election, I hope Brian Aus will step forward, Durham could do no better, intelligence, experience, honesty and integrity all in one package.

It is unfathomable that she would have been the "go-to" character witness for both Nifong and Cline - unless she was one of them.

Her credential as former Durham ADA is ominous.

Is anyone able, or interested, to review the criminal cases Judge Morey has handled, to see if she has avoided the Durham DA occupational diseases of deficient ethics, blindness to justice, affection for prevarication, and attention to self-interest?

It may be that local attorneys cannot do this, for fear of retaliation.

But, surely, at least some of the those convicted have the means to investigate these issues? Or, does the State Bar have any leverage in this situation? Or, anyone else?

To the 10:38 who entered: One has to ask why it is that ethical lawyers (there have to be some) in Durham have not stood as one to demand something be done about the culture of lies that seemingly exists in the prosecutor's office in Durham. Simple answer: it's the culture of the time; look at the U.S. Attorney General and 'Fast and Furious'.Big Al

An interesting post from an insider, I encourage more. But the people of Durham, on balance, are getting exactly what they deserve and want. Of course, decent people will be steamrollered by incompetence and malice in Durham and that is sad and wrong. But this is how the people want it to operate and the next election will vote to keep it the same way.

The corruption is in the people and cannot be fixed by removing a bad apple or two here and there.

Barry Saunders' insights, both as a respected local columnist and as a break-in victim "whose case" (a misnomer, as KC and others have said) was handled by Tracey, are of interest.

Last election day, I was approached by Tracey as I waited to vote. This somewhat impressed me, as she was "working the line" even while unopposed.

"Hey," I said (in a mock news-flash tone), "Did ya hear that those Duke Lacrosse guys turned out to te innocent?"

I was impressed that she handled the jibe well, replying with a smile, "Yeah, I think I read about that!"

Anyway, she proceeded to poll me about my thoughts regarding the importance of prosecuting home-burglars (hence the Barry Saunders column reminding me of the encounter).

I said my house was burglarized and I hated the feeling of invasion, even more than I resented the loss of considerable property. I thought break-in perps should be prosecuted.

She hmmmm'd, and told me, well really almost all of them are "just" drug-addicts who end up getting sent to treatment -- her implication being that burglary cases were a waste of prosecutorial resources.

So, while I give her credit for at least asking some voters for their attitudes about it, I find it humorous that she was so inspired to pursue a burglary case on the one occasion when the victim happened to be a locally popular columnist.

Excellent post, KC! Many of us opponents of political correctness and abuse of power are counting on you to keep punching.

I believe the Durham District Attorney situation is a textbook example for former Supreme Court Justice Sandra Day O'Connor's campaign to replace elected judges (and perhaps also District Attorneys) with appointed officials.

This blog is great and the writing is thoughtful. I would like to respond to a couple comments (as a Durham resident). When people ask why lawyers in Durham allow this to go on - - don't you think its fear of the DAs power? If you accuse them and lose, they can really adversely affect your life/business. Given how corrupt we know Nifong/Cline to be, its not below them to unfairly single out a lawyer and/or thei clients.

You also can't completely hold the people of Durham at fault. yes we elected Cline, but not Nifong. And Cline ran unopposed in her election....finally, much of this corruption isn't visible to the average voting person. We don't find out until they are in office and start their work.

As a fellow Durham resident, I share your shame, and your impulse to want to believe this is somehow not the electorate's fault.

But, when you claim we never elected Nifong?? Sorry, to the City's eternal disgrace, we did. He was elected long after all brain-enabled persons should have well known that he was a fraud and a crook. But, he WAS "popularly" elected, because it was portrayed that only racists would vote against him.

AND, because nobody bothered to run against him. Surely you recall that Lewis Cheeck (now representing an unpopular real-estate developer in South Durham), was willing to go against Nifong on the ballot -- only with the explicit promise that, if elected, he would immediately quit. Remember?

And of course, because Nifong was a shameless liar who knew how to exploit the weaknesses of those he lied-to, he prevailed.

If the voters get off-the-hook to any extent, I think it can only be by shifting blame to the Durham lawyers at large, who, while knowing that Nifong was corrupt, still failed to find one individual willing to take on the (admittedly) thankless job of being Durham's zookeeper.

As a Durham lawyer myself (and far from a politician), I have personally overheard lawyers at group meetings, expressing the problem in just those terms.

In short, NOBODY wants that job -- making it a bit harder to resent Tracey Cline for taking-on such a filthy, thankless burden.

But that does not excuse Tracey lying to judges or, essentially, going off her rocker in the ways now revealed in the record.

Bottom line: Both Nifong (essentially) and Cline won UNOPPOSED in Durham.

Yes, the voters of Durham did indeed elect Nifong, albiet after the term for which he was first appointed had expired. And, his election by Durham voters took place well after he committed the majority of the very acts that caused him to be disbarred and jailed.

This blog and numerous other very visible publications exposed in great detail Nifong's "corruption" to even the most casual observer.

Your assertions might be more believable if you can advance an argument that the vast majority of Durham voters can neither read, write, or think, which is certainly plausible.

First, in the May, 2006 primary after his extra-judicial comments were known to all, and that the first 2 indictments were highly suspect; and 2nd, in the November, 2006 general election after almost everything about Nifong's malfeasance was public knowledge.

This is a bit off-topic, but did you see the protests against Dominique Strauss-Kahn at Cambridge (the original one, not the one in Massachusetts)? The students are just as bigoted as the ones at Duke University in 2006 - they assume Strauss-Kahn is guilty because he's a rich white man, and his accuser is poor and black.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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